HISTORY REPEATS ITSELF

Two bills looking to reshape the nation’s criminal justice system were introduced this week, and all of sudden, criminal justice advocates are partying like it’s 2015.

Leading the pack, a pack of influential senators led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois) announced the introduction of S. 1917, the Sentence Reform and Corrections Act of 2017. SRCA17 – a retread of the Sentence Reform and Corrections Act of 2015 – is aimed at easing sentences for some federal offenders, such as for drug crimes, while beefing up other tough-on-crime laws. The measure would get rid of the federal three-strike law mandatory life sentence for some repeat drug offenders, three-strike but would also allow some people with previous convictions for serious violent and serious drug felonies to face enhanced penalties.

“This bill strikes the right balance of improving public safety and ensuring fairness in the criminal justice system,” said Grassley, who is chair of the Senate Judiciary Committee. “It is the product of much thoughtful deliberation, and we will continue to welcome input from stakeholders as we move forward.”

SRCA17reportedly reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provisions for some offenders; expands the existing safety valve to offenders with more extensive criminal histories, and creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum; expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing; requires the Dept of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs, permitting prisoners who successfully complete these programs to get early release and to spend up to 25% of their remaining sentence in home confinement or a halfway house; and provides for a report and inventory of all federal criminal offenses.

Sen. Grassley has not revealed his scheduling plan for marking up SRCA17. Its 2015 predecessor passed the Judiciary Committee 15-5 during the last Congress, but never reached a floor vote due to Senate Majority Leader Mitch McConnell (R-Kentucky), who did not want the measure voted on during the contentious 2016 presidential campaign.

SRCA17 will enjoy support from White House senior advisor Jared Kushner, who is interested in reforming the federal criminal justice system and previously has met with senators about the issue. The bill will undoubtedly be opposed by Attorney General Jefferson Beauregard Sessions III, a man recently described by President Trump as an idiot, who helped kill SRCA15 when he was a senator.

Meanwhile, five Republican senators Ted Cruz (Texas), Orrin Hatch and Mike Lee (both of Utah), Rand Paul (Kentucky), David Perdue (Georgia) introduced S. 1902, the Mens Rea Reform Act, on Monday. The MRRA would prevent the government from convicting someone of a federal crime without proving they committed the crime “knowingly and willfully.”

This is the second time Republicans in Congress have introduced “mens rea” reform, presenting a similar bill in 2015 that never made it out of committee.

WE’RE BACK, BABY!

After serving as a showpiece for what great bipartisanship can accomplish, the Sentencing Reform and Corrections Act of 2015foundered on the shoals of presidential campaign politics last year, never making it to a floor vote in the Senate due to the fears of Majority Leader Mitch McConnell (R-Kentucky) that the vote could tarnish Republicans at the polls.

The bill, originally introduced in 2015, would cut mandatory minimum sentences for certain drug offenses and armed career criminals while increasing mandatory minimums for other offenses such as domestic violence. The bill was watered down early on in the process to satisfy law-and-order senators by eliminating any retroactive provisions. In other words, changing the law so that newly convicted people would not face unintended “stacked” mandatory minimums made sense, but relieving sentences of people who were given those “stacked” sentences the day before the bill passed did not.

Watered down or not, the SRCA fell to demagoguery from the likes of Sen. Ted Cruz (R-Texas), who supported the measure before he started running for president, but then opposed it on the campaign trail. An even greater foe was then-Sen. Jefferson Beauregard Sessions III, who is now Attorney General.

Nevertheless, building on the Senate’s success in repealing Obamacare and passing comprehensive tax reform, some U.S. senators are now planning to take a second stab at passing a bipartisan criminal justice reform bill after it stalled amid GOP infighting. Sens. Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) said Tuesday that they will reintroduce the SRCA, but they did not specify exactly when.

“While the political landscape in Washington has changed, the same problems presented by the current sentencing regime remain,” Grassley said. Despite the fact the bill has been worked on now over three different congresses, Durbin believes it the “best chance in a generation to right the wrongs of a badly broken system.”

The bill cleared the Senate Judiciary Committee in 2015, with Sen. John Cornyn (R-Texas) – one of the co-sponsors – predicting it would come to a floor vote soon afterwards. As Senate law-and-order conservatives started taking whacks at it, House Speaker Paul Ryan (R-Wisconsin) questioned whether the House would even be willing to debate the version of SRCA the Senate was cooking up. The bill died with the end of the last congress.

Starting with the day after its death last January, Grassley and Durbin began expressing interest in reviving the criminal justice bill. Along with Sen. Mike Lee (R-Utah), reportedly met with President Trump’s son-in-law and senior adviser Jared Kushner last March to discuss the issue. Kushner has a special interest in federal criminal justice reform.

The push to pass the criminal justice reform bill could set up a potential fight with the Dept. of Justice, and Sessions, who was one of the leading opponents against the legislation when he was a member of the Senate. It is not known how much influence the AG still has with the President, who thinks Sessions is both “weak” and an “idiot.”

Sen. Thom Tillis (R-North Carolina), another supporter of the criminal justice reform effort, speculated last January that Sessions as attorney general would have as a chief objective enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

FLIGHT OF THE PHOENIX

Congressman Bob Goodlatte (R-Virginia), chairman of the House Judiciary Committee, said yesterday that his agenda for the 115th Congress includes comprehensive sentencing reform, which was subject of a two year-long bipartisan push in both houses of the 114th Congress before being run down and killed by the 2016 elections.

Speaking to the Federalist Society at the National Press Club, Goodlatte said, “Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.”

Goodlatte’s announcement bookends a week that began with House Oversight Committee Chairman Jason Chaffetz (R-Utah) saying that criminal-sentencing reform proponents in Congress are optimistic that Vice President Mike Pence will be an ally, helping them to work with the Trump administration to pass sentence reform legislation.

“I’ve got reason to be hopeful,” Chaffetz told reporters at a morning session of the Seminar Network, a group of libertarian and conservative donors gathered in Palm Springs by Charles and David Koch.

Incoming Attorney General Sessions – no friend of sentencing reform.

Even as Congressional Republicans started sliding sentencing reform onto the front burner, CNN darkly warned that “the future of criminal justice reform hangs in the balance as the nomination of Alabama Sen. Jeff Sessions, President Donald Trump’s pick for attorney general” was approved in a party-line vote by the Senate Judiciary Committee. CNN cited unidentified “activists” who worried that Trump would “halt former President Barack Obama’s reforms, and institute new policies that could worsen conditions.”

We’re not sure what planet CNN has been on, but we’re fairly confident that Obama’s only criminal justice “reform” of note in eight years – unless you include his arbitrary and gimmicky clemency lottery – was passage of the Fair Sentencing Act of 2010. And as for that, Sessions not only voted for the Act, but in fact worked with Sen. Dick Durbin (D-Illinois) in gaining its passage. That Act reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, a change widely seen as benefitting minorities, whom were statistically more likely to be involved with crack than with the standard powder. Obama loved to talk a good game, but his Administration promised much (remember Eric Holder’s grand “working group to examine Federal sentencing and corrections policy” announced with fanfare in 2009, only to disappear in the Washington swamp, never to be heard from again?) but delivered damn little.

None of this is to suggest that Trump or Sessions share enlightened views on sentencing reform. To the contrary: Trump branded many of the federal prisoners receiving clemency as “bad dudes,” a label applied in usual Trumpian fashion with little reflection and no investigation. As a senator, Sessions was one of the early and vociferous opponents of the Sentence Reform and Corrections Act of 2015, contending that it would “release many dangerous criminals back into American streets.”

President Trump says they’re coming to a street corner near you.

This might be a plus. With Sessions no longer in the Senate to organize an uber-conservative revolt against sentencing reform, Sen. Tom Cotton (R-Arkansas) will stand virtually alone in trying to derail sentence reform. Sure, Sessions may still be against it, but he’ll have much bigger fish to fry over at 9th and Constitution, running the 113,500 employees at DOJ.

As for Trump, will he be an impediment to bipartisan sentencing reform? Who can predict anything with the famously impulsive President? It is noteworthy, however, to observe that last Tuesday in introducing Judge Neil Gorsuch as his nominee for Justice Antonin Scalia’s seat on the Supreme Court, Trump noted of Judge Gorsuch: “While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.”

Ohio State University law professor Doug Berman, who writes the Sentencing Law and Policy blog, found it “quite notable that… Prez Trump would stress this history.” Could it be that the President would not be as inalterably opposed to federal sentencing reform as some “activists” might fear?

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Legal Thought for the Day

“I agree that the sentence is not substantively unreasonable; but I believe the result to be close to absurd." ~~~ Judge Guido Calabresi, concurring, United States v. Jones, Case No. 15-1518-cr (2nd Cir., Oct. 5, 2017).